What the Dog Saw

2.

Words belong to the person who wrote them. There are few simpler ethical notions than this one, particularly as society directs more and more energy and resources toward the creation of intellectual property. In the past thirty years, copyright laws have been strengthened. Courts have become more willing to grant intellectual-property protections. Fighting piracy has become an obsession with Hollywood and the recording industry, and, in the worlds of academia and publishing, plagiarism has gone from being bad literary manners to something much closer to a crime. When, two years ago, Doris Kearns Goodwin was found to have lifted passages from several other historians, she was asked to resign from the board of the Pulitzer Prize committee. And why not? If she had robbed a bank, she would have been fired the next day.

I’d worked on “Damaged” through the fall of 1996. I would visit Dorothy Lewis in her office at Bellevue Hospital and watch the videotapes of her interviews with serial killers. At one point, I met up with her in Missouri. Lewis was testifying at the trial of Joseph Franklin, who claims responsibility for shooting, among others, the civil- rights leader Vernon Jordan and the pornographer Larry Flynt. In the trial, a videotape was shown of an interview that Franklin once gave to a television station. He was asked whether he felt any remorse. I wrote:

“I can’t say that I do,” he said. He paused again, then added, “The only thing I’m sorry about is that it’s not legal.”

“What’s not legal?”

Franklin answered as if he’d been asked the time of day: “Killing Jews.”

That exchange, almost to the word, was reproduced in Frozen.

Lewis, the article continued, didn’t feel that Franklin was fully responsible for his actions. She viewed him as a victim of neurological dysfunction and childhood physical abuse. “The difference between a crime of evil and a crime of illness,” I wrote, “is the difference between a sin and a symptom.” That line was in Frozen, too—not once but twice. I faxed Bryony Lavery a letter:

I am happy to be the source of inspiration for other writers, and had you asked for my permission to quote —even liberally—from my piece, I would have been delighted to oblige. But to lift material, without my approval, is theft.

Almost as soon as I’d sent the letter, though, I began to have second thoughts. The truth was that, although I said I’d been robbed, I didn’t feel that way. Nor did I feel particularly angry. One of the first things I had said to a friend after hearing about the echoes of my article in Frozen was that this was the only way I was ever going to get to Broadway—and I was only half joking. On some level, I considered Lavery’s borrowing to be a compliment. A savvier writer would have changed all those references to Lewis, and rewritten the quotes from me, so that their origin was no longer recognizable. But how would I have been better off if Lavery had disguised the source of her inspiration?

Dorothy Lewis, for her part, was understandably upset. She was considering a lawsuit. And, to increase her odds of success, she asked me to assign her the copyright to my article. I agreed, but then I changed my mind. Lewis had told me that she “wanted her life back.” Yet in order to get her life back, it appeared, she first had to acquire it from me. That seemed a little strange.

Then I got a copy of the script for Frozen. I found it breathtaking. I realize that this isn’t supposed to be a relevant consideration. And yet it was: instead of feeling that my words had been taken from me, I felt that they had become part of some grander cause. In late September, the story broke. The Times, the Observer in England, and the Associated Press all ran stories about Lavery’s alleged plagiarism, and the articles were picked up by newspapers around the world. Bryony Lavery had seen one of my articles, responded to what she read, and used it as she constructed a work of art. And now her reputation was in tatters. Something about that didn’t seem right.

3.

In 1992, the Beastie Boys released a song called “Pass the Mic,” which begins with a six-second sample taken from the 1976 composition “Choir” by the jazz flutist James Newton. The sample was an exercise in what is called multiphonics, where the flutist “overblows” into the instrument while simultaneously singing in a falsetto. In the case of “Choir,” Newton played a C on the flute, then sang C, D-flat, C—and the distortion of the overblown C combined with his vocalizing created a surprisingly complex and haunting sound. In “Pass the Mic,” the Beastie Boys repeated the Newton sample more than forty times. The effect was riveting.

In the world of music, copyrighted works fall into two categories—the recorded performance and the composition underlying that performance. If you write a rap song, and you want to sample the chorus from Billy Joel’s “Piano Man,” you have to first get permission from the record label to use the “Piano Man” recording, and then get permission from Billy Joel (or whoever owns his music) to use the underlying composition. In the case of “Pass the Mic,” the Beastie Boys got the first kind of permission—the rights to use the recording of “Choir”—but not the second. Newton sued, and he lost—and the reason he lost serves as a useful introduction to how to think about intellectual property.

At issue in the case wasn’t the distinctiveness of Newton’s performance. The Beastie Boys, everyone agreed, had properly licensed Newton’s performance when they paid the copyright recording fee. And there was no question about whether they had copied the underlying music to the sample. At issue was simply whether the Beastie Boys were required to ask for that secondary permission: was the composition underneath those six seconds so distinctive and original that Newton could be said to own it? The court said that it wasn’t.

The chief expert witness for the Beastie Boys in the “Choir” case was Lawrence Ferrara, who is a professor of music at New York University, and when I asked him to explain the court’s ruling, he walked over to the piano in the corner of his office and played those three notes: C, D-flat, C. “That’s it!” he shouted. “There ain’t nothing else! That’s what was used. You know what this is? It’s no more than a mordent, a turn. It’s been done thousands upon thousands of times. No one can say they own that.”

Ferrara then played the most famous four-note sequence in classical music, the opening of Beethoven’s Fifth: G, G, G, E-flat. This was unmistakably Beethoven. But was it original? “That’s a harder case,” Ferrara said. “Actually, though, other composers wrote that. Beethoven himself wrote that in a piano sonata, and you can find figures like that in composers who predate Beethoven. It’s one thing if you’re talking about da-da-da dummm, da- da-da dummm—those notes, with those durations. But just the four pitches, G, G, G, E-flat? Nobody owns those.”

Ferrara once served as an expert witness for Andrew Lloyd Webber, who was being sued by Ray Repp, a composer of Catholic folk music. Repp said that the opening few bars of Lloyd Webber’s 1984 “Phantom Song,” from The Phantom of the Opera, bore an overwhelming resemblance to his composition “Till You,” written six years earlier, in 1978. As Ferrara told the story, he sat down at the piano again and played the beginning of both songs, one after the other; sure enough, they sounded strikingly similar. “Here’s Lloyd Webber,” he said, calling out each note as he played it. “Here’s Repp. Same sequence. The only difference is that Andrew writes a perfect fourth and Repp writes a sixth.”

But Ferrara wasn’t quite finished. “I said, let me have everything Andrew Lloyd Webber wrote prior to 1978—Jesus Christ Superstar, Joseph, Evita.” He combed through every score, and in Joseph and the Amazing Technicolor Dreamcoat he found what he was looking for. “It’s the song ‘Benjamin Calypso.’” Ferrara started playing it. It was immediately familiar. “It’s the first phrase of ‘Phantom Song.’ It’s even using the same notes. But wait—it gets better. Here’s ‘Close Every Door,’ from a 1969 concert performance of Joseph.” Ferrara is a dapper, animated man, with a thin, well-manicured mustache, and thinking about the Lloyd Webber case was almost enough to make him jump up and down. He began to play again. It was the second phrase of “Phantom.” “The first half of ‘Phantom’ is in ‘Benjamin Calypso.’ The second half is in ‘Close Every Door.’ They are identical. On the button. In the case of the first theme, in fact, ‘Benjamin Calypso’ is closer to the first half of the theme at issue than the plaintiff’s song. Lloyd Webber writes something in 1984, and he borrows from himself.”

In the “Choir” case, the Beastie Boys’ copying didn’t amount to theft because it was too trivial. In the